[00:00:00] Speaker 03:
Good afternoon and may it please the court.

[00:00:02] Speaker 03:
My name is Sarah Stettler and I represent Steven Catlin, the petitioner appellant in this case.

[00:00:07] Speaker 03:
I'd like to reserve eight minutes of my time.

[00:00:09] Speaker 04:
Eight?

[00:00:10] Speaker 03:
Eight.

[00:00:10] Speaker 03:
We'll try to help you, but keep your eye on the clock.

[00:00:12] Speaker 03:
Okay.

[00:00:13] Speaker 03:
Sounds good.

[00:00:15] Speaker 03:
This case is a microcosm of the flawed capital punishment system in California.

[00:00:20] Speaker 03:
Steven Catlin will be 80 years old later this year and has been incarcerated for these crimes for almost 40 years.

[00:00:26] Speaker 03:
In 1986 Mr. Catlin was convicted and sentenced to life without parole for another crime.

[00:00:32] Speaker 03:
And if either the convictions or the sentence in this case were reversed, Mr. Catlin would still be serving that life without parole sentence.

[00:00:40] Speaker 03:
took almost two decades, 17 years, for Mr. Catlin's state direct appeal and habeas corpus petition to be decided by the state Supreme Court without the benefit of any factual development or evidentiary hearing.

[00:00:52] Speaker 03:
Another dozen years passed before the district court denied Mr. Catlin's petition without allowing him to fully develop the facts or granting him an evidentiary hearing in support of any of those claims.

[00:01:03] Speaker 03:
The present case could have been resolved in a myriad of ways over the last few decades, yet we are here today

[00:01:09] Speaker 03:
discussing the unconstitutional errors which resulted in Mr. Catlin spending close to half his life on death row and which could result in further years of litigation depending on the outcome of this argument.

[00:01:20] Speaker 03:
Yet if this case were ended today, Mr. Catlin would continue serving his life without parole sentence.

[00:01:27] Speaker 03:
Ten years ago, when seeking further factual development in the district court, Mr. Catlin urged the court to move the parties towards some form of expedited resolution to no avail.

[00:01:37] Speaker 03:
There were many points along the path of litigation where the state court could have agreed to resolve this case and save the strained judicial and taxpayer resources, but they did not.

[00:01:48] Speaker 03:
Council have reached out to respondents council as recently as yesterday regarding a settlement.

[00:01:52] Speaker 03:
in this case that would end this litigation while leaving Mr. Catlin.

[00:01:55] Speaker 00:
Council, this is all interesting history, but a lot of it doesn't seem to be before us.

[00:02:01] Speaker 00:
We've got discrete issues that are before us.

[00:02:03] Speaker 00:
It'd be helpful if you could walk us through what you think your strongest arguments are.

[00:02:08] Speaker 03:
Sure.

[00:02:08] Speaker 03:
Yes, Your Honors.

[00:02:10] Speaker 03:
As I was saying,

[00:02:12] Speaker 03:
The, as I prepared for this argument, I was just amazed at the amount of time that has gone into this case without ever having any serious factual development or any hearings below to expand the record and get a better sense of some of these claims.

[00:02:32] Speaker 04:
Forgive me, I want to follow up on my colleague's question because

[00:02:36] Speaker 04:
Part of your problem is whether EDPA applies.

[00:02:39] Speaker 04:
And I would like to know right off the bat whether you contend that EDPA governs this case.

[00:02:45] Speaker 04:
And if so, why?

[00:02:47] Speaker 03:
Well, Your Honor, that is a good starting point.

[00:02:54] Speaker 03:
That's the underlying law that we deal with, right?

[00:02:57] Speaker 03:
So Mr. Catlin's position is that there was no adjudication on the merits from the California Supreme Court to which Edpa deference would be... Okay, you make that argument in your reply brief in our case of Ochoa versus Davis says that's a no winner, right?

[00:03:15] Speaker 03:
And if that's the case, then

[00:03:18] Speaker 03:
Our next position would be that there was an unreasonable application of clearly established federal constitutional law.

[00:03:25] Speaker 04:
Which is in this case, and this my colleague asked the question, so following up what he said then.

[00:03:31] Speaker 04:
Which in this case is Strickland.

[00:03:34] Speaker 04:
Is what?

[00:03:35] Speaker 03:
Which in this case is Strickland.

[00:03:37] Speaker 03:
Strickland, so okay, all IAC claims, right?

[00:03:39] Speaker 03:
Yes, yes.

[00:03:40] Speaker 04:
Okay.

[00:03:41] Speaker 03:
But it's all on failure to investigate.

[00:03:43] Speaker 03:
on failure to investigate and present information that, so there was a number of items that post-conviction counsel added to the record that were not in the possession of trial counsel, but we also found multiple instances of.

[00:04:04] Speaker 00:
Okay, but so let's just walk, let's take those serious.

[00:04:07] Speaker 00:
Sure.

[00:04:08] Speaker 00:
If you find evidence that trial counsel didn't have, then this whole question before us,

[00:04:14] Speaker 00:
is whether trial counsel was ineffective in not discovering that earlier, right?

[00:04:18] Speaker 00:
I mean, obviously he can't be ineffective in failing to consider it if he didn't know it.

[00:04:23] Speaker 00:
So our question is, should he have found that out?

[00:04:27] Speaker 03:
Yes, Your Honor.

[00:04:27] Speaker 03:
Our position is that the

[00:04:30] Speaker 03:
much like the U.S.

[00:04:32] Speaker 03:
Supreme Court has found when there are items in counsel's possession which have red flags.

[00:04:40] Speaker 00:
Okay, so what was in counsel's possession that in your opinion he should have investigated more than he didn't do?

[00:04:51] Speaker 03:
Two things jumped to mind that were in trial counsel's possession that should have flagged him to do further investigation.

[00:05:00] Speaker 03:
The Wasco high school records of Mr. Catlin when his adoptive parents sent him to Wasco to live with John Brown, who was a convicted and known pedophile, also a police officer in the small town of Wasco, that would have led to the

[00:05:21] Speaker 03:
information that would be very persuasive to most jurors on the sexual abuse that Mr. Catlin was subjected to throughout his time living with Mr. Brown.

[00:05:33] Speaker 00:
Do you believe that if a convicted murderer was subject to sexual abuse in his youth, they should not be able to get the death penalty is totally unwarranted?

[00:05:48] Speaker 03:
That's not what our position is.

[00:05:53] Speaker 03:
Ninth Circuit law and US Supreme Court law has found time and again that the most powerful mitigation evidence presented to jurors is evidence of childhood trauma, in particular childhood sexual abuse, as well as brain damage,

[00:06:13] Speaker 03:
drug and alcohol abuse.

[00:06:15] Speaker 01:
But why is that sexual abuse a mitigation?

[00:06:17] Speaker 01:
I just don't understand that part.

[00:06:20] Speaker 03:
Why is it mitigating?

[00:06:22] Speaker 01:
Yeah, why is it mitigating?

[00:06:24] Speaker 03:
Jurors tend to take the side of small children, or in this case, teenage children, who don't have the ability to consent to the abuse that Mr. Catlin in this case was subjected to.

[00:06:38] Speaker 01:
But how would that excuse the murder of three people?

[00:06:41] Speaker 03:
Well, mitigation evidence is really not about excusing conduct.

[00:06:48] Speaker 03:
It's about explaining conduct.

[00:06:49] Speaker 03:
And in this case, we had two jurors who, at the end of trial, both gave declarations as to the expectation that they had for mitigating

[00:07:01] Speaker 01:
See, I guess that's the problem.

[00:07:03] Speaker 01:
You're suggesting that the sexual abuse explains why he murdered three people, but then that is almost aggravating evidence.

[00:07:11] Speaker 01:
It shows that he might murder more people in the future, and it seems that the counsel's take of that he's not a threat in society, he's adjusted in prison, and he's rehabilitated does seem like the stronger mitigating evidence, and so this would be contradictory to that.

[00:07:30] Speaker 03:
Well, our position, Mr. Catlin's position, is that good guy evidence of the type that was presented here typically is of little value when the facts of the crimes such that they are here with multiple bodies

[00:07:49] Speaker 03:
a wife.

[00:07:50] Speaker 04:
Well that may all be true, but as my colleague is implying here, I mean the reality is this was a strategic decision made by council to show what a good guy Catlin is.

[00:08:02] Speaker 04:
There are three or four things that he pointed out.

[00:08:05] Speaker 04:
It's a good guy in prison, helped everybody, everybody thought he was nice.

[00:08:09] Speaker 04:
And that's directly opposed to bringing in evidence about childhood sexual trauma and the implication that he would continue to act out and kill people.

[00:08:19] Speaker 04:
So if it is a strategic decision that was made, how can you say that that is a violation of the first prong of Strickland?

[00:08:29] Speaker 03:
So if we had evidence that it was a strategic decision, then it would be hard to argue.

[00:08:35] Speaker 03:
How could it be otherwise?

[00:08:38] Speaker 03:
If case law from the Ninth Circuit and the US Supreme Court shows that if you have not done a full investigation into the available mitigating evidence, then you cannot have an informed decision-making process.

[00:08:53] Speaker 03:
So it's hard to have a trial strategy if you've not first done the investigation.

[00:09:00] Speaker 04:
And what particular case are you referring to that is the progeny of Strickland that would fit what you're just describing in this case?

[00:09:09] Speaker 03:
So, I mean Wiggins, Porter, Williams, going back to

[00:09:16] Speaker 03:
Lock it.

[00:09:18] Speaker 03:
I mean, if we were to go into the briefing, so I see Williams, Ainsworth from this court, Hendricks, Duescher v. Whitley, all of these go back to the responsibility of trial counsel to make a full investigation before making any decisions.

[00:09:39] Speaker 04:
But, I mean, you know, I learned an early lesson.

[00:09:42] Speaker 04:
I wrote Penholster.

[00:09:43] Speaker 04:
And I know what the Supreme Court looks for and how it applies to EDPA.

[00:09:50] Speaker 04:
And unless there's some staggering evidence that was missed, I'm having trouble thinking of any case

[00:10:01] Speaker 04:
that would allow you to say this was not a strategic decision on the part of counsel.

[00:10:06] Speaker 04:
Try to present, Mr. Katelyn is a good guy, if you will.

[00:10:08] Speaker 04:
He reformed, good guy, dealing with people nicely.

[00:10:11] Speaker 04:
And if you bring in the sexual abuse context, and the implication is from that testimony that he killed some more people, like my colleague suggested.

[00:10:24] Speaker 04:
It's hard to see where a jury

[00:10:26] Speaker 04:
Well, you can't say exactly what the jury will do, but it's hard to see how that was anything other than a strategic decision.

[00:10:33] Speaker 04:
Why am I wrong about that?

[00:10:35] Speaker 03:
Well, I wouldn't ever say Your Honor was wrong about anything.

[00:10:39] Speaker 04:
That's very nice of you.

[00:10:41] Speaker 03:
But what I would say is that the billing records of Attorney De La Strido, who handled the penalty phase in this case, show that he did not put in very much time

[00:10:54] Speaker 04:
The council in Pincholster spent six hours in total preparing for the penalty phase.

[00:11:03] Speaker 04:
And there were all kinds of issues.

[00:11:05] Speaker 04:
The kid had been run over by his mother.

[00:11:07] Speaker 04:
He went through the windshield, on and on and on and on.

[00:11:09] Speaker 04:
Never went in.

[00:11:11] Speaker 04:
Supreme Court reversed.

[00:11:13] Speaker 04:
Said, no problem.

[00:11:15] Speaker 04:
That's enough.

[00:11:16] Speaker 03:
How do you get past it with this?

[00:11:19] Speaker 03:
Well, I think in this case, the fact that there are

[00:11:24] Speaker 03:
instances as we discuss the alcohol abuse, drug abuse, the brain damage, the exposure to neurotoxins that led to the brain damage, the sexual trauma, all of these things have been... But you would agree that if those had been investigated and they presented it, counsel would have had to raise a different theory of the case.

[00:11:48] Speaker 00:
So at the end of the day, isn't that what you're questioning is you're saying, well, he should have raised a different theory of the case.

[00:11:54] Speaker 00:
He couldn't have argued he's good above board, but he's also justified in making all these decisions because of his these past traumas.

[00:12:05] Speaker 03:
Typically I would not expect to see a good guy defense along with the mitigation case that we're discussing, but our position is that the good guy defense was unreasonable in this case.

[00:12:19] Speaker 00:
Well, it didn't work.

[00:12:21] Speaker 00:
So I give you that, but we're always going to be faced with that, because you're always going to be coming up in this posture where what the trial counsel did didn't work, and you're saying, well, we should have done something else.

[00:12:33] Speaker 00:
But it seems, as Judge Smith has already questioned you on, the Supreme Court said, we're not going to do that.

[00:12:39] Speaker 00:
We're going to rely on counsel's

[00:12:43] Speaker 00:
we're going to assume that they've made a good faith basis to make a strategic decision.

[00:12:48] Speaker 00:
They have to make all these decisions all the time.

[00:12:50] Speaker 00:
And yeah, hindsight's 2020, you know, it's like, you, you, you know, you, you threw the pass in the end zone and you missed it.

[00:12:59] Speaker 00:
So everybody says you should have run the ball.

[00:13:02] Speaker 00:
Yeah, maybe, but we don't know.

[00:13:04] Speaker 00:
And the strategic decision was made.

[00:13:08] Speaker 00:
It didn't work, but I don't know why it wasn't ... You don't get a lot of these defendants who have had such a stellar history in prison and things like that.

[00:13:24] Speaker 00:
I don't know why it was unreasonable to take that as a potential defense.

[00:13:30] Speaker 03:
To your point, I would also point out that Mr. Catlin, though he's now wheelchair-bound and has been for the last 10 years, but over the past 40 years, he has been right up free and basically a good prisoner.

[00:13:44] Speaker 00:
That seems like a good strategy to present to the jury.

[00:13:49] Speaker 03:
I just think given the facts of the, if the facts were not as bad as they were in this case, a good guy defense might be appropriate.

[00:14:01] Speaker 03:
But in this case, it flies in the face of what the jury has just decided upon.

[00:14:07] Speaker 03:
I'm guessing if they were surveyed right after the conviction came down, no one would say, Mr. Catlin's a good guy.

[00:14:17] Speaker 03:
So I think in that case, there needs to be some sort of explanation.

[00:14:21] Speaker 03:
And the declarations from the jurors after the trial showed that they were expecting to see something along the lines of hearing about adoption and school and psychiatric reports.

[00:14:33] Speaker 04:
That's all well and good.

[00:14:35] Speaker 04:
You have something unusual in this case.

[00:14:37] Speaker 04:
You have a prior murder conviction.

[00:14:39] Speaker 04:
You've got admission.

[00:14:41] Speaker 04:
You killed these people.

[00:14:43] Speaker 04:
You've got fingerprints.

[00:14:44] Speaker 04:
You've got overwhelming evidence.

[00:14:47] Speaker 04:
And as you know very well as able counsel, there are two parts to Strickland.

[00:14:51] Speaker 04:
The first part showing that there was a failure to meet even minimum standards of professional conduct and, in this case, extremely important, that it was prejudicial.

[00:15:05] Speaker 04:
And I think more than anything else in this case, I don't see how you establish prejudice.

[00:15:10] Speaker 04:
It's such a staggering case.

[00:15:13] Speaker 04:
You know, paraquat poisoning, three people, wow.

[00:15:18] Speaker 04:
Fingerprints on the paraquat.

[00:15:20] Speaker 04:
I mean, he got life insurance.

[00:15:23] Speaker 04:
It's all there.

[00:15:24] Speaker 04:
And that wasn't even questioned.

[00:15:26] Speaker 04:
So what you're talking about is whether that person, self-confessed murderer, et cetera, et cetera, et cetera,

[00:15:32] Speaker 04:
gets a break because he had some childhood trauma.

[00:15:36] Speaker 04:
Admittedly, significant.

[00:15:38] Speaker 04:
But I don't see how you can show prejudice for that.

[00:15:41] Speaker 03:
What am I missing?

[00:15:42] Speaker 03:
Well, I think Your Honor is speaking to, at the guilt phase, certainly the... Well, not just the guilt phase, but moving on from there.

[00:15:51] Speaker 04:
I mean, when you get to the penalty phase, you still bring in this evidence.

[00:15:57] Speaker 04:
What did he do?

[00:15:58] Speaker 04:
And the circumstances and the agony of these people suffered when they died.

[00:16:03] Speaker 04:
The fact that they got money, et cetera, et cetera.

[00:16:06] Speaker 04:
That's all part of the penalty phase, all of it.

[00:16:09] Speaker 04:
And what you're suggesting, and again, you're just doing your job, but you're suggesting that because you had a difficult, traumatic experience and molested, that's awful stuff.

[00:16:20] Speaker 04:
It really is, but how can it possibly overcome

[00:16:25] Speaker 04:
what was admitted that these other things occurred.

[00:16:31] Speaker 03:
And to that, Your Honor, I would say under Strickland and its progeny only one juror needs to be

[00:16:39] Speaker 03:
impacted by this mitigation evidence.

[00:16:42] Speaker 03:
And we had two jurors who, after the fact, said we were expecting to hear something about psychiatric problems, something that kind of explains how something like this happened.

[00:16:52] Speaker 04:
They didn't say they would have ruled otherwise.

[00:16:54] Speaker 04:
They just said they were expecting it.

[00:16:55] Speaker 03:
No, no.

[00:16:56] Speaker 03:
And I'm not saying they... I'm saying that they were primed through the...

[00:17:01] Speaker 03:
the water and the death qualification to expect that there was going to be something along the lines of mitigating evidence that might give some context to how someone could do something like this and after the

[00:17:18] Speaker 03:
after the trial ended and none of that had been presented and instead this good guy defense, which again, not to discount that there's some power to saving somebody's son and being a good friend and institutional adjustment, all of those things are appropriate in certain cases.

[00:17:38] Speaker 03:
But in this case, given the facts as you stated them at the guilt phase, it seemed like the jurors were expecting something

[00:17:48] Speaker 03:
like brain damage, like exposure to neurotoxins and alcohol and sexual trauma, et cetera.

[00:17:57] Speaker 03:
And not that that excuses or justifies anything, but it might explain to those jurors.

[00:18:03] Speaker 04:
Well, let me ask you this.

[00:18:04] Speaker 04:
Again, you're a good lawyer.

[00:18:05] Speaker 04:
You're doing what you need to do.

[00:18:07] Speaker 04:
But you've given us the scatter gun approach.

[00:18:10] Speaker 04:
We see it all the time in capital cases.

[00:18:12] Speaker 04:
You throw everything up on the wall and see if anything sticks.

[00:18:16] Speaker 04:
best argument as to what you think sticks in this case?

[00:18:21] Speaker 04:
In terms of the issue?

[00:18:23] Speaker 04:
What's your best argument?

[00:18:25] Speaker 04:
You've made lots of them.

[00:18:27] Speaker 04:
So in terms of the issue or claim or?

[00:18:30] Speaker 04:
Yeah, what's your best claim?

[00:18:33] Speaker 04:
In other words, you've got three judges here, we've read the materials, we know what the case is about, we read the briefs, we read the cases and so on.

[00:18:43] Speaker 04:
Based on that, what is your best argument that you think is going to convince this panel that your client ought to get some relief under that EDPA standard?

[00:18:53] Speaker 03:
So I think Mr. Catlin's best issue is the ineffectiveness of trial counsel at the penalty phase for failing to investigate.

[00:19:03] Speaker 04:
And from your perspective, which claim is that?

[00:19:07] Speaker 04:
You're talking about 23?

[00:19:09] Speaker 04:
You're talking about 35?

[00:19:10] Speaker 04:
Probably 35, right?

[00:19:11] Speaker 04:
I think that's 35, yes.

[00:19:13] Speaker 04:
And which subpart?

[00:19:15] Speaker 04:
You got A through F. Which one?

[00:19:19] Speaker 04:
I believe F. That's cumulative, right?

[00:19:22] Speaker 04:
Yes.

[00:19:23] Speaker 04:
So all of the above.

[00:19:24] Speaker 04:
We're going back to the same thing.

[00:19:25] Speaker 04:
So basically, you're just saying it's an ineffective assistance of council claim.

[00:19:32] Speaker 04:
and that we as a panel should look at the Strickland standard in this case, whether the Council made an inappropriate strategic decision and whether or not that happened, whether there's prejudice.

[00:19:46] Speaker 04:
Is that your position?

[00:19:47] Speaker 04:
That's our position.

[00:19:48] Speaker 03:
And I believe that had the California Supreme Court granted an OSC or allowed further factual development, there may be more of a record to present to the court.

[00:20:01] Speaker 04:
But you can't build a new record based on pinholes.

[00:20:03] Speaker 04:
You can't go back and create the record again, right?

[00:20:06] Speaker 03:
You got what you got.

[00:20:11] Speaker 03:
post-conviction counsel was diligent in attempting to build the record and the state supreme court failed to allow that, then the district court could have allowed factual development there but did not.

[00:20:24] Speaker 03:
So at this point we have what we have and you know the district court also and respondents point out that in some areas the record could have been more fully developed and our position is that we tried.

[00:20:39] Speaker 03:
We were not allowed by the state Supreme Court nor the district court.

[00:20:44] Speaker 04:
You got nine minutes and some seconds.

[00:20:45] Speaker 04:
Do you want to keep that?

[00:20:46] Speaker 04:
You said eight minutes.

[00:20:47] Speaker 04:
But if you're on a roll, go ahead.

[00:20:49] Speaker 04:
But if you want to, David, come back in a minute.

[00:20:51] Speaker 03:
If you have further questions, I'm happy to take them.

[00:20:53] Speaker 03:
Otherwise, I'll reserve my time.

[00:20:55] Speaker 03:
Very well.

[00:20:55] Speaker 03:
I think let's do that.

[00:20:57] Speaker 03:
Thank you.

[00:20:58] Speaker 04:
All right.

[00:20:59] Speaker 04:
Let's hear from, how do you say, Chocolor?

[00:21:03] Speaker 04:
Is that correct?

[00:21:05] Speaker 04:
Chocolor.

[00:21:05] Speaker 02:
May it please the court.

[00:21:07] Speaker 02:
Kenneth Secolar, Supervising Deputy Attorney General for the state.

[00:21:12] Speaker 02:
I'll start by addressing the claim that occupied the discussion of the last few minutes, which is specifically the claim of ineffective assistance at the penalty phase for failure to present social history.

[00:21:28] Speaker 02:
And the claim involves a failure to present evidence of social history regarding Mr. Catlin and his parents.

[00:21:37] Speaker 02:
In addition to what was discussed during the last few minutes, there's an even more fundamental reason that the state court was reasonable under Section 2254D in dismissing the claim.

[00:21:53] Speaker 02:
And that is that Mr. Catlin has identified no witness who would have testified about that evidence, about his own history, about his parents' history.

[00:22:08] Speaker 02:
and a claim of failure to present.

[00:22:10] Speaker 00:
Can I ask, though, so Brown, as I understand it, died in 1988?

[00:22:13] Speaker 02:
I don't know.

[00:22:17] Speaker 00:
I mean, he did speak to investigators about the sexual abuse, right?

[00:22:22] Speaker 00:
According to the report, yes.

[00:22:24] Speaker 00:
So your argument is, when did the trial happen?

[00:22:28] Speaker 00:
Can you remind me?

[00:22:29] Speaker 02:
This trial was 1990.

[00:22:32] Speaker 00:
OK, so your argument is because Brown had died, he wouldn't have been able to come in and testify.

[00:22:38] Speaker 00:
But if he had signed an affidavit, could they have preserved the evidence in some way that this could have been presented to the jury?

[00:22:46] Speaker 00:
I get your point.

[00:22:49] Speaker 00:
It would have been unavailable.

[00:22:50] Speaker 02:
I understand the question.

[00:22:52] Speaker 02:
It still would have had to have a foundation.

[00:22:58] Speaker 02:
And without analyzing that more carefully under the California evidence code, I can't say for sure.

[00:23:04] Speaker 00:
And that's the only hesitation I have with your argument there is I'm just not, that seems a little bit more complicated.

[00:23:12] Speaker 00:
The easier route here seems to be just saying, look, we're going to accept that all this was out there, and it just doesn't satisfy it.

[00:23:21] Speaker 00:
Are you asking us to take a more narrow procedural view on that?

[00:23:28] Speaker 02:
I think that both approaches are correct.

[00:23:31] Speaker 02:
I'm adding to the argument here.

[00:23:34] Speaker 01:
But why couldn't Mr. Catlin testify to it?

[00:23:37] Speaker 02:
He didn't testify at the penalty phase.

[00:23:40] Speaker 01:
But he could have, well, I guess.

[00:23:42] Speaker 02:
Yes, he could have.

[00:23:43] Speaker 02:
He had testified at the guilt phase.

[00:23:45] Speaker 02:
And the point I was going to make in response to the last question was, even if Brown was no longer available at the time the habeas petition was filed or at the time of trial, Mr. Catlin knew what happened to him, and he has

[00:24:02] Speaker 02:
never executed.

[00:24:04] Speaker 02:
He didn't testify at the penalty phase.

[00:24:06] Speaker 02:
Uh, he has also never executed a declaration, uh, describing what happened to him.

[00:24:12] Speaker 00:
Is there, or in, is there evidence in the investigatory notes that counsel talked to Catlin?

[00:24:17] Speaker 00:
I mean, they obviously heard this from Brown.

[00:24:20] Speaker 00:
Did they follow up with Catlin specifically to say, Hey, we heard this from Brown.

[00:24:25] Speaker 00:
Can you confirm or deny this or we just don't know?

[00:24:27] Speaker 02:
We don't know from the record we have but we certainly can assume that Catlin talked with his attorneys and He could have executed a declaration in the state habeas action stating what he did and did not talk about with them What they did and didn't ask him?

[00:24:47] Speaker 02:
Uh, so he certainly had the ability to provide that evidence, uh, which is required for an ineffective assistance of counsel claim.

[00:24:57] Speaker 02:
And he didn't do that.

[00:24:58] Speaker 02:
And in fact, uh, as I noted in my brief, his failure to do so when he had that information leads to a negative, an inference that he didn't do so.

[00:25:09] Speaker 01:
So what's the point of that, that you're saying that he wasn't in fact sexually abused or you're just saying that he would have no evidence to prove it up.

[00:25:17] Speaker 02:
He hasn't shown that he would have any evidence to prove it up, and he hasn't shown any competent evidence for the purpose of the habeas corpus proceeding.

[00:25:28] Speaker 02:
The habeas corpus claim for IAC for failure to introduce evidence at trial

[00:25:34] Speaker 02:
Introduced testimony at trial has to show has to identify the evidence and Identify admissible evidence that would have come in and he has never done that Regarding the claim of sexual assault or any of the other claims?

[00:25:52] Speaker 04:
For the penalty phase so basically from your perspective in terms of the evidence required to even Make a claim of IAC.

[00:26:01] Speaker 04:
There's no there there because there's no evidence that was ever introduced

[00:26:05] Speaker 02:
Correct.

[00:26:06] Speaker 02:
I agree with the notion that was at least floated during the argument of Pelland by the court that it would be reasonable in any event in view of the strategy that the defense did adopt at the penalty phase to refrain from presenting evidence

[00:26:32] Speaker 02:
of sexual assault.

[00:26:34] Speaker 02:
And in fact, I think this is exactly the kind of situation in that sense that the Supreme Court was talking about in the Dunvey Reeves case when they said that a state court isn't obliged to accept a petitioner's blanket assertion on an incomplete evidentiary record that no reasonable strategy could have supported counsel's failure.

[00:26:52] Speaker 02:
And in here, the evidentiary record is incomplete, and it's the petitioner's burden to come forth with the evidence.

[00:27:00] Speaker 02:
And he could have done so here.

[00:27:03] Speaker 04:
I gather you take the position that since he is still alive, it certainly was at the time of the penalty phase, he could have put on evidence himself, testified I was molested and so on, even if his persecutor, if you were, was not still alive, he still could have made that statement, right?

[00:27:24] Speaker 02:
He could have, even if there was no other evidence available

[00:27:27] Speaker 02:
He could have taken the stand and he could have also executed, provided declarations to fill on the blanks regarding his habeas corpus claim.

[00:27:36] Speaker 00:
Are there any cases that, first of all, are there any cases, what's the case that has granted a petition for ineffective assistance of counsel?

[00:27:45] Speaker 00:
I mean, they say to Wiggins, Williams, Porter, and Lockett, I mean, can you address those and explain why they don't apply here?

[00:27:54] Speaker 02:
I can't address the specific facts of them, although Wiggins pointed out that the reasonableness of the investigation is a part of the reasonableness determination.

[00:28:12] Speaker 02:
But in that case, the petitioner identified the evidence that counsel could have found and introduced.

[00:28:23] Speaker 02:
And in this case, Catlin hasn't identified any admissible evidence that could have been introduced regarding the sexual assault.

[00:28:37] Speaker 04:
And so... This is just kind of a side question, but it kind of, for me, frames what we're dealing with here.

[00:28:45] Speaker 04:
Have you ever been involved in defending a capital case where there was not an IAC claim made?

[00:28:51] Speaker 02:
It's always made, isn't it?

[00:28:52] Speaker 02:
No.

[00:28:52] Speaker 02:
The only ones I know that don't have an IAC penalty phase claim, or perhaps an IAC claim, are the ones where the defendant was pro-per, which are few and far between.

[00:29:03] Speaker 02:
But to answer what I think the court is asking, no.

[00:29:07] Speaker 04:
It's just for de rigueur.

[00:29:08] Speaker 04:
It's what you always claim.

[00:29:11] Speaker 04:
Always, always, always.

[00:29:12] Speaker 04:
That is correct.

[00:29:13] Speaker 04:
And the Supreme Court, which of course we're subject to, is pretty leery.

[00:29:19] Speaker 04:
of those kinds of claims.

[00:29:21] Speaker 04:
You have a real burden to show that what counsel did or didn't do was outside the mainstream of legal performance.

[00:29:31] Speaker 04:
And then you've got to show prejudice.

[00:29:33] Speaker 04:
And that's what I struggle with in this case.

[00:29:35] Speaker 04:
If you'd gone through and it was a perfect world, could you find little individual things you could do?

[00:29:40] Speaker 04:
Maybe.

[00:29:41] Speaker 04:
But that's not the standard here.

[00:29:43] Speaker 04:
The question is within the community that represents

[00:29:47] Speaker 04:
capital dependence was just so outside the pale that it just is inexcusable.

[00:29:54] Speaker 04:
And I'm not seeing that.

[00:29:55] Speaker 02:
Correct.

[00:29:55] Speaker 02:
The question is whether a reasonable defense counsel could have made the decision that defense counsel did.

[00:30:02] Speaker 02:
But even more, because this is under Section 22-54D, it's under what the Supreme Court has called the double deference standard, which is whether a reasonable jurist could find that a competent attorney would make that decision.

[00:30:17] Speaker 02:
To frame my argument, I do agree that a reasonable, even if the evidence of sexual abuse at a younger age was admissible, a reasonable state court could conclude that a reasonable defense attorney could decide not to introduce that evidence.

[00:30:38] Speaker 02:
in the under the idea that it doesn't support the rest of the penalty phase defense, which I would take a little issue with calling it the good guy defense.

[00:30:48] Speaker 02:
I've heard that term before.

[00:30:49] Speaker 02:
I would I would say more accurately that it's the has enough

[00:30:55] Speaker 02:
redeeming qualities that his life is worth sparing defense at the risk of stacking modifiers in a way that I would hope no one would do in a brief.

[00:31:05] Speaker 02:
Never heard that word, stacking modifiers.

[00:31:07] Speaker 02:
Stacking modifiers.

[00:31:08] Speaker 02:
That's interesting, okay.

[00:31:13] Speaker 02:
So I think it fails on a couple of issues.

[00:31:16] Speaker 02:
One is, the first one I think to look at is he simply has not met his duty to present

[00:31:24] Speaker 02:
to introduce the evidence needed to support the claim.

[00:31:28] Speaker 02:
And secondly, even if we were to go beyond that, a reasonable jurist could find the counsel's decision were reasonable.

[00:31:35] Speaker 02:
And what's more, certainly a reasonable state court could find no prejudice, even if there was admissible evidence given, again, the nature of the crimes and the evidence that they did introduce.

[00:31:50] Speaker 02:
which included evidence of the positive role Mr. Catlin had played in the lives of some other people, the fact that he had saved a child's life, and his unusually successful adjustment to incarceration in state prison.

[00:32:09] Speaker 02:
Unless the court has any questions about the other issues, and that would be the other ineffectiveness at the penalty phase issue for failure to call a neuropsychologist

[00:32:20] Speaker 02:
or the guild phase claims, which were the Brady claim, the related ineffective assistance of counsel related to the Brady claim, and the claim regarding a next party conversation between the court and a juror.

[00:32:35] Speaker 02:
Unless the court has any questions about any of those or further questions about this ineffectiveness claim, I'll submit.

[00:32:42] Speaker 04:
Any other questions, Monica?

[00:32:43] Speaker 04:
I think not.

[00:32:44] Speaker 04:
Very well.

[00:32:44] Speaker 04:
Thank you, Your Honors.

[00:32:45] Speaker 04:
OK.

[00:32:47] Speaker 04:
All right.

[00:32:48] Speaker 04:
So much stellar.

[00:32:52] Speaker 03:
Thank you, Your Honor.

[00:32:55] Speaker 03:
So as to my colleague's point about Catlin could have taken the stand in to explain the sexual abuse,

[00:33:08] Speaker 03:
Obviously if if trial counsel had wanted to pursue a typical mitigation case that would have been one avenue We don't know whether or not Trial counsel had even spoken to or pursued this with mr. Catlin I thought the government's argument is that that could have been presented at the habeas stage, too And why wasn't that not presented then so?

[00:33:31] Speaker 03:
We have the investigator's report, which is a statement against interest from Mr. Brown.

[00:33:40] Speaker 03:
Typically, with issues of sexual trauma, sexual abuse, a lot of clients, especially those that remain incarcerated, are very loath to discuss any of that for obvious reasons while they're incarcerated.

[00:33:59] Speaker 03:
Our position is that we have the information necessary, and we've included that in the habeas petition.

[00:34:11] Speaker 03:
But again, because trial counsel decided not to pursue this type of defense,

[00:34:17] Speaker 03:
It ended up with what I think many courts, including the Ninth Circuit, have called the good guy defense in a case when that really wasn't what would impact a jury.

[00:34:31] Speaker 04:
That's what didn't impact the jury, but that was certainly part of the, if you will, mitigation defense, right?

[00:34:39] Speaker 03:
Yeah, so I mean, it clearly was all of the marbles were in the bag of the good guy defense.

[00:34:46] Speaker 03:
And the question is whether that was reasonable for counsel to do and whether there was prejudice in that, you know.

[00:34:53] Speaker 04:
And that's where I think we all struggle with this.

[00:34:57] Speaker 04:
uh... this isn't the perfect lawyer the issue the question is the reasonable lawyer what and there's a double deference here is uh... your opposing counsel pointed out maybe counsel shouldn't have gone with the in quotes good guy defense but he did and it didn't work but that doesn't mean there was something else that would have worked and i believe you're asking us to say that that's that strategy was so far outside the

[00:35:27] Speaker 04:
mainstream that Prong 1 is satisfied.

[00:35:30] Speaker 04:
Isn't that your position?

[00:35:32] Speaker 03:
Our position is that reasonableness can't be properly evaluated when you haven't done the work to investigate and see.

[00:35:40] Speaker 04:
Well sure, because you're claiming that he was deficient for failure to discover and apply these things.

[00:35:47] Speaker 03:
Yeah, so my point is he couldn't have made a reasonable decision because he hadn't done the legwork of investigating and seeing everything that was available

[00:35:57] Speaker 03:
to present in mitigation and this was the type of evidence that at least two jurors

[00:36:04] Speaker 01:
said they were expecting to see but did not see and i thought council did know about the john brown allegations yes so what more did council need to do at that point if he just made if council was making that strategic decision to go with a good guy defense instead of this mitigation the fact that he knew that what what more did he have to know so with the john brown that was information that was available whether he read that investigators report i don't know whether he looked at the

[00:36:33] Speaker 03:
High school records.

[00:36:34] Speaker 03:
I don't know because trial counsel did not Cooperate with with post-conviction counsel.

[00:36:41] Speaker 03:
So we don't know from trial counsel what exactly was going through so we know that these Records with the red flags were in in their possession whether they made a decision not to follow up on that is something that we cannot know and

[00:36:58] Speaker 03:
The adoption records also were in their possession, but we don't know what, if anything, was done with that.

[00:37:06] Speaker 01:
For example, if there was a letter in the defense counsel's file saying, I've looked at this Brown allegation, I think it's contrary to the strategy we're going for, and so therefore I'm going to disregard it, then you would have no argument, correct?

[00:37:19] Speaker 03:
At that point, I think the court would look at that and say, that's a strategy which Strickland protects.

[00:37:25] Speaker 01:
But then, now under EDPA, you're just asking us to speculate then, because there's nothing contrary to that.

[00:37:31] Speaker 03:
Well, under EDPA, what I'm saying is there's no evidence that they investigated all of the reasonable red flags that the Supreme Court tells trial counsel to investigate.

[00:37:43] Speaker 01:
Right, so we're supposed to put all these pieces and speculate that he did nothing with it and didn't investigate it, didn't ignore it without a strategic reason.

[00:37:49] Speaker 01:
I just don't think we could do that under EDPA, that level of speculation.

[00:37:54] Speaker 03:
Well, that's Mr. Catlin's position is that it's clear from the record that there was

[00:38:01] Speaker 03:
evidence, mitigating evidence that would have made an impact on at least one juror that was available to trial counsel and they failed to investigate that or present it.

[00:38:14] Speaker 03:
Unless there's anything further.

[00:38:16] Speaker 04:
Any other?

[00:38:17] Speaker 04:
I think not.

[00:38:17] Speaker 04:
Thanks to both counsel.

[00:38:19] Speaker 04:
We appreciate your efforts on these.

[00:38:20] Speaker 04:
These cases are challenging.

[00:38:23] Speaker 04:
We appreciate you're doing your job well.

[00:38:25] Speaker 04:
It helps us.

[00:38:26] Speaker 04:
And the court stands adjourned for the

[00:38:30] Speaker 04:
By the way, the case is submitted.

[00:38:32] Speaker 04:
I should have said that.